Kazan and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 539

Kazan and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 539 (28 July 2016)

Division	GENERAL DIVISION
File Number	2015/5071
Re	Cetin Kazan
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	28 July 2016
Place	Sydney

The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 3 September 2015 to refuse Mr Kazan’s application for Australian citizenship, is affirmed.

.................[sgd].......................................................

J W Constance
Deputy President

CATCHWORDS

CITIZENSHIP - good character - whether Applicant satisfies the legislative requirement to be shown to be of good character - previous convictions - domestic violence - traffic offences - whether any mitigating factors or explanations outweigh the behaviour - decision affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2), 24

CASES

Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Deputy President J W Constance

28 July 2016

INTRODUCTION

1. Mr Kazan applied for Australian citizenship on 10 June 2015. On 3 September 2015, a delegate of the Minister refused the application on the basis that he had not established that he was of good character at that time. Mr Kazan has applied to this Tribunal for a review of the delegate’s decision.

2. For the reasons which follow the decision under review will be affirmed.

   BACKGROUND

3. Mr Kazan is a citizen of Turkey. He migrated to Australia on 23 June 2003. He currently holds a subclass 100 (spouse) visa.

4. Between February 2005 and March 2013 Mr Kazan was charged with three domestic violence related offences. All involved Mr Kazan’s former wife with whom he has two children.

5. On 23 February 2005, Mr Kazan was charged with common assault following an incident where, according to the police records, Mr Kazan allegedly grabbed his wife around the neck with force.[1] The charge was dismissed due to lack of evidence on 1 March 2005.[2]

   [1] R1, ST3, p.64-65.

   [2] R1, ST1, p.47.

6. On 1 September 2010, Mr Kazan was charged with the offence of destroy and damage property. The police fact sheet sets out the following series of events[3]:

   ·Mr Kazan drove to his wife’s apartment. An argument ensued between them and she walked away. Mr Kazan then took an iron bar and smashed all of the windows of his wife’s car;

   ·Mr Kazan drove to his father-in-law’s house and engaged in a verbal argument with him;

   ·his father-in-law then drove to his wife’s house;

   ·Mr Kazan returned to his wife’s house and demanded to be let in;

   ·when he was refused entry he smashed the windows of his father-in-law’s car with his fists and feet.

   [3] R1, ST1, p.44-46.

7. On 10 September 2010, Mr Kazan was convicted of the offence of two counts of “destroy or damage property ≤ $2000” and sentenced to an 18 month good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

8. On 1 March 2013, Mr Kazan was charged with assault occasioning actual bodily harm. This incident also involved his former wife, with whom he had been cohabitating for a year prior to the incident. The police records set out the following series of events[4]:

   ·on the afternoon of 1 March 2013 Mr Kazan and his wife were driving home with their son;

   ·during the car trip his wife received a call from her friend’s husband about picking up their daughter from school;

   ·Mr Kazan was ‘enraged’ and began to yell at her;

   ·when they arrived home, Mr Kazan punched two holes in a gyprock wall and smashed plates and glasses on the kitchen floor;

   ·his wife went for a walk around the block;

   ·Mr Kazan got in the car and drove up beside her and demanded that she give him her phone;

   ·when she refused Mr Kazan punched her to the left cheek with a closed fist, causing the inside of her lip to bleed.

   [4] R1, ST3, p.60-61.

9. On 15 May 2013, Mr Kazan was convicted of the offence of “assault occasioning actual bodily harm” and sentenced to a two year good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act.

10. Mr Kazan has been the subject of apprehended violence orders made in February 2005, September 2010, March 2013 and May 2013.[5]

    [5] R1, ST3, p.59-65.

11. Mr Kazan has the following record of traffic infringements in Australia:

    (a)3 February 2006- exceed speed limit by not more than 15km/h whilst driving a motor vehicle (camera detected);

    (b)29 March 2006- drive contrary to stop sign or stop line;

    (c)14 May 2006- exceed speed limit by not more than 15km/h whilst driving a motor vehicle (camera detected);

    (d)8 August 2006- demerit points warning letter sent in respect of the offences listed above;

    (e)3 May 2008- drive using hand-held mobile phone;

    (f)22 July 2008- demerit point suspension of drivers licence due to above offences;

    (g)10 August 2009- exceed speed limit by more than 10km/h but no more than 20km/h whilst driving a motor vehicle (camera detected) (school zone);

    (h)30 July 2013- suspension of drivers licence for a fine default;

    (i)7 November 2013- exceed speed limit by no more than 10km/h whilst driving a motor vehicle (camera detected) (school zone);

    (j)16 April 2014- suspension of drivers licence for a fine default;

    (k)17 April 2014- disobey left turn/right turn/ no turns sign at intersection;

    (l)21 October 2014- not stop at red arrow- camera detected;

    (m)15 January 2015- demerit points warning letter sent in respect of the offences (i), (k) and (l) above;

    (n)9 January 2015- exceed speed limit by more than 10km/h but no more than 20km/h whilst driving a motor vehicle (camera detected);

    (o)18 February 2015- demerit points warning letter sent in respect of the offences (i), (k), (l) and (n) above;

    (p)19 September 2015- disobey traffic lights;

    (q)8 December 2015- demerit point suspension of drivers licence for period 12 January 2016 until 11 April 2016.

12. In his application for Australian citizenship, Mr Kazan did not disclose all of the offences of which he had been convicted. In response to the question ‘Have you been convicted of, or found guilty of, ANY offences overseas or in Australia…?, Mr Kazan answered ‘yes’. The form then required Mr Kazan to ‘give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, [and] full details of sentence’. In response Mr Kazan wrote:

    I was given apprehended violence order and good behaviour bond in 2013 (please see the attached evidence)[6]

    Attached to the application form was a copy of the police records for the 2013 offence.

    [6] Exhibit R1 p.28

13. On 2 July 2015 the Department contacted the Applicant to invite him to respond to information about his criminal record. In response to this request Mr Kazan provided a letter attaching the court documents from both the 2010 and 2013 offences. In that letter he wrote “I had never been to court before 2010”.[7]

    [7] R1, p.62.

    ISSUE FOR DETERMINATION

14. The issue before me is whether at the time of my decision Mr Kazan is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

    LEGISLATION

15. Applications for conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth). Section 24 of the Act provides:

    (1)    If a person makes an application under section 21, the Minister must, by 

    writing, approve or refuse to approve the person becoming an Australian citizen.

    (1A)    The Minister must not approve the person becoming an Australian citizen

    unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

16. Section 21(2) of the Act establishes the requirements for eligibility of the grant of citizenship. It provides in part:

    (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    …

    (h)is of good character at the time of the Minister’s decision on the application.

17. This is the only subsection that is in issue in the present application. As the Tribunal stands in the shoes of the decision-maker these requirements of the law are applicable to the decision that I must make.

    Citizenship Policy

18. The Citizenship Policy has been adopted by the Minister to guide those making decisions under the Act. The purpose of Chapter 11 is to “provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.

19. The Citizenship Policy reflects government policy and is not binding on the Tribunal. However the Tribunal should apply the Policy unless there are “cogent reasons to the contrary”[8]. I am satisfied in this matter that there are no reasons why I should not apply it.

    [8] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.

20. Chapter 11 provides in part:

    ‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.[9]

    [9] At p.145.

21. This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[10]

    Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. ... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. (citations of authorities omitted).

    [10] (1996) 68 FCR 422 at 431-432.

22. After referring to the judgement of the Court in Irving, Chapter 11 provides, in part:

    In this context, "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:

    ·characteristics which have been demonstrated over a very long period of time

    ·distinguishing right from wrong

    ·behaving in an ethical manner, conforming to the rules and values of Australian society.

    The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.[11]

    [11] At p.145.

23. In considering the Citizenship Policy I have taken into account that it refers to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[12] in which the Tribunal said:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.

    [12] [2011] AATA 304 at [120].

24. The Policy goes on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, and be truthful and not practise deception in his or her dealings with the Australian Government.[13] All of these authorities along with the Citizenship Policy make it clear that abiding by Australian laws is a very important factor that I need to consider.

    CONSIDERATION

    [13]  At p. 147.

    Characteristics of a person of good character

25. Chapter 11 provides a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of the Chapter. They include:

    ·respect and abide by the law in Australia and other countries.

    …    

    ·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example: …

    ·         concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship;

    …

    ·not be violent … and not cause harm to others through their conduct.

    ...

26. It is a matter of weighing up the various factors in the evidence before me. Under the heading of Weighing up the character decision, the Policy provides:

    Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.

    In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

    •would a person of good character have behaved the way the applicant did

    •what is there to demonstrate that the applicant has upheld and obeyed the law

    •has the applicant behaved in accordance with Australia's community standards

    •does the applicant share Australia’s democratic beliefs and respect its rights and liberties.[14]

    I note that, once again there is a reference to the question of whether an applicant for citizenship has upheld and obeyed the laws of Australia.

    [14] At pp. 149-150.

    Mr Kazan’s health issues

27. Mr Kazan provided multiple reports from various doctors in relation to his health problems since 2005. Of relevance, Mr Kazan suffered from a pituitary gland tumour, for which he underwent several surgeries and radiotherapy. In a letter to the Department dated 7 August 2015 Mr Kazan stated that the condition caused him to have ‘severe headaches that was causing anger and fluctuating mood’[15]

    [15] Exhibit R1, p. 62.

28. Mr Kazan also provided reports from Ms Tungandame, psychologist, dated 7 August 2016,[16] 11 January 2016[17] and 27 June 2016.[18] In her August 2015 report Ms Tungandame stated that Mr Kazan exhibited symptoms consistent with ‘Major Depressive Disorder without Psychotic Features, recurrent’ and ‘Generalized Anxiety Disorder’. Further she reported:

    His brain tumour has resulted in side effects that included severe headaches, irritability, poor anger management, changes in mood and had impacted his judgement and decision making ability…

    Mr Kazan was provided intervention that included psycho-education, client-centred supportive counselling, anger management strategies and techniques, relaxation strategies such as deep breathing and progressive muscle relaxation to mage [sic] and cope with anxiety, sleep hygiene and relapse prevention.[19]

    Character references

    [16] Exhibit A1.

    [17] Exhibit A2.

    [18] Exhibit A3.

    [19] Exhibit A1, p.1-2.

    Evidence of Mehmet Ali Uluc

29. Mr Uluc, a friend of the Applicant for over 11 years, provided a signed statement to the Tribunal. Mr Uluc acknowledged the Applicant’s past offending and stated:

    Following his conviction I encouraged him to receive counselling to overcome his anger issue. He has improved a lot since he started seeing a psychologist.

    I have always found Cetin to be a person of great integrity and honesty. He has been known as a dedicated father for his children. He has excellent relationship with the people he deals with except the specific period after he was diagnosed with brain tumor [sic].[20]

    Evidence of Mr Kazan’s former wife

    [20] Exhibit A6.

30. Mr Kazan’s former wife provided a statutory declaration dated 27 November 2015. It reads in part:

    He went through very hard times. When I look back I believe I wasn’t strong enough to support him in some ways… I have tried my best but maybe I could have tried better. I might have exaggerated some of the issues and incidents between us which lead him to have bad marks on his personal records.

    …

    He is a very kind, generous, humble, honest and affectionate person.[21]

    I accept the Respondent’s assertion that caution should be exercised when dealing with statements that have been written by victims of past domestic violence.

    Evidence of Mehmet Demir

    [21] Exhibit A7.

31. Mr Demir, who has known the Applicant for 7 years provided a signed statement dated 30 March 2016. It reads in part:

    I have found Mr Kazan to be an honest and trustworthy person. He has been known as a highly respected member of the Turkish and Kurdish Community… he has been highly regretful for his acts. What he did is out of character and he has improved a lot since he started receiving counselling.[22]

    [22] Exhibit A4.

    Weighing the various factors

32. I must look holistically at the Applicant’s behaviour over an enduring period of time.

33. Mr Kazan’s assault upon his ex-wife and his convictions for destroying and damaging property in a domestic context both weigh heavily against a finding that he is of good character. Mr Kazan was convicted of a serious offence involving domestic violence just 3 years ago, for which the good behaviour bond expired one year ago.

34. In oral evidence the Applicant showed little remorse for his actions and instead concentrated on his poor health and his wife not being understanding towards him. In relation to the convictions in 2010 Mr Kazan stated that he had an argument with his wife due to her alleged infidelity but stated that he did not hit her. These comments, along with the fact that the applicant pleaded not guilty to the 2013 offences show a significant lack of understanding of the seriousness of the offences of which he was convicted.

35. The Applicant has a substantial traffic history and his licence suspension expired only 3 months ago. This suggests a lack of respect for and observance of the Australian road laws and weighs against a finding that the Applicant is of good character.

36. In relation to his non-disclosure of all of his past offences on his application form, Mr Kazan initially asserted that he did submit the court records of the 2010 convictions with his application form, but later he conceded that perhaps he had failed to do so. He mentioned that someone else had helped him to fill out the form and perhaps he forgot to tell them about the 2010 convictions. He claimed that he did not intentionally try to conceal the convictions and made reference to the memory problems he has faced as a result of his medical conditions.

37. In relation to the letter sent from Mr Kazan to the Department on 7 August 2015 which stated that the he had ‘never been to court before 2010’,  Mr Kazan informed the Tribunal that he does not clearly recall the letter but said that someone else, probably an interpreter, would have written it for him. He also stated that he did not think that he had anything to do with courts before 2010 but then conceded that there was a hearing for the 2005 offence.

38. In his application form Mr Kazan did truthfully answer ‘yes’ to the question of whether he had been convicted of any offences. Although, not all convictions were explained in the space provided the Applicant seemed to be genuinely surprised that not all convictions were disclosed. I accept the Applicant’s evidence that his limited English and his memory problems may have affected the accuracy of the application form and therefore I am not satisfied that there was a purposeful intention to conceal his prior convictions. As such this issue has a neutral effect on my findings.

1. I have taken into account the physical and psychological conditions that the Applicant was suffering during the time of his offences. I note also that he has taken positive steps to treat his mental health conditions. However, given the short time that has elapsed since the offence and in particular since he has been free from the obligation of a good behaviour bond, I am unable to find that Mr Kazan has demonstrated that he has rehabilitated himself. Further, I do not find that Mr Kazan’s medical conditions excuse the serious offences that he has committed.

2. I have also considered the multiple character references to Mr Kazan’s involvement in the community, including the Turkish and Kurdish community and the references to his being a dedicated and loving father. Although, I accept these attestations, applying what was said by the Federal Court in Irving I must look at the Applicant’s actions rather than how the Applicant is subjectively viewed within the community.

3. I do not consider that any of these factors or explanations outweigh Mr Kazan’s past serious offending behaviour. I must consider Mr Kazan’s enduring moral qualities at the time of this decision. On the evidence before me such qualities have not been demonstrated.

   CONCLUSION

4. The reviewable decision of the delegate of the Minister of Immigration and Border Protection made 3 September 2015 to refuse Mr Kazan’s application for Australian citizenship, will be affirmed.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

...........[sgd].............................................................

Associate

Dated 28 July 2016

Date of hearing	6 July 2016
Date final submissions received	6 July 2016
Applicant	In person
Solicitors for the Respondent	Mr A Keevers; Sparke Helmore